Exhibit 10.2
MODIFICATION AND FORBEARANCE
AGREEMENT
THIS MODIFICATION AND FORBEARANCE
AGREEMENT (this “ Modification ”), made and
entered into this 12th day of January, 2009, by and among WILSON
FAMILY COMMUNITIES, INC. , a Delaware corporation (“
Borrower ”), GREEN BUILDERS, INC. , a Texas
Corporation formerly known as WILSON CONVERSION, INC. , a
Texas corporation, successor by conversion to WILSON HOLDINGS,
INC. , a Nevada corporation (“ Guarantor ”),
and GRAHAM MORTGAGE CORPORATION , a Texas corporation
(“ Holder ”);
WITNESSETH:
WHEREAS , Borrower executed that certain Deed of Trust
Note dated March 8, 2007, payable to the order of Holder in the
original principal amount of $4,700,000.00 (the “ Note
”); and
WHEREAS , payment of the Note is secured by the lien and
provisions of that certain First Lien Deed of Trust (with Security
Agreement and Assignment of Rents) dated March 8, 2007, executed by
Borrower to David G. Drumm, as Trustee for the benefit of the
Holder, recorded March 9, 2007, under County Clerk’s Number
2007042840 and re-recorded under County Clerk’s Number
2008062743, Official Public Records of Travis County, Texas, and of
that certain Second Lien Deed of Trust (with Security Agreement and
Assignment of Rents) dated March 8, 2007, executed by Borrower to
David G. Drumm, as Trustee for the benefit of the Holder, recorded
March 9, 2007, under County Clerk’s Number 2007042841, and
re-recorded under County Clerk’s Number 2008062773, Official
Public Records of Travis County, Texas (collectively, the “
Deed of Trust ”), covering certain land and
improvements described therein (the “ Mortgaged
Property ”); and
WHEREAS , the payment of the Note is guaranteed by the
terms of that certain Unconditional Guaranty executed by Guarantor
dated March 8, 2007 (the “ Guaranty ”);
and
WHEREAS , Borrower is currently the owner of the
Mortgaged Property and Holder is currently the owner and holder of
the Note, and Borrower and Holder desire to amend and modify the
Note as set forth herein;
NOW, THEREFORE
, for and in consideration of the
mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, the parties hereto do hereby agree as
follows:
1.
Borrower agrees
and stipulates that in addition to the $4,700,000 principal amount
of the Note (the “ Principal Amount ”), the
additional amount of $244,791.67 in accrued interest (the “
Existing Accrual ”) are payable on the Note as of
December 31, 2008. Holder agrees to defer the payment by Borrower
of the Existing Accrual until the earliest to occur of December 31,
2009, the Payment in Full of the Note, or the acceleration of the
Note pursuant to its terms as modified
hereby. “Payment in Full of the Note” shall
mean the payment by Borrower of the Principal Amount, the Existing
Accrual, the Modified Interest Payments (with interest calculated
through the date of such payment), the Additional Payment (with
interest calculated through the date of such payment) and any late
charges or attorneys fees owed pursuant to the terms of the
Note.
2.
Commencing with
the interest payment due on February 1, 2009 (which shall be a
payment for interest accruing from January 1, 2009 through January
31, 2009) and ending December 31, 2009 (which shall be a payment
for interest accruing from December 1, 2009 through December 31,
2009), the interest payment due on the Note is decreased to
interest solely on the Principal Amount calculated as simple
interest at the rate of two percent (2%) per annum (the “
Modified Interest Payments ”) and shall be payable
monthly in arrears. In addition to such Modified Interest Payments,
an additional interest payment (the “ Additional
Payment ”) on the Principal Amount calculated as simple
interest at a rate of twelve percent (12%) per annum shall accrue
from January 1, 2009 and shall be added to the balance of the
Note.
3.
Commencing with
February 1, 2009, Borrower shall pay to Holder on the first day of
each calendar month an amount equal to 1/12
th of the estimated ad valorem taxes to be assessed
against the Mortgaged Property for the tax year 2009 (it being
acknowledged that the Borrower shall apply for the agricultural use
of the Mortgaged Property for 2009 and the estimated ad valorem
taxes shall be based on this use of the Mortgaged
Property). Holder shall apply the amount so paid by
Borrower to discharge the ad valorem taxes assessed against the
Mortgaged Property for the tax year 2009, but shall not be required
to pay Borrower any interest on such funds, and shall be entitled
to commingle such funds with other funds of Holder. To
the extent that such funds are not sufficient to fully discharge
the 2009 ad valorem taxes assessed against the Mortgaged Property,
Borrower shall be solely responsible for the
shortfall. To the extent that such funds are in excess
of the amount required to fully discharge the 2009 ad valorem taxes
assessed against the Mortgaged Property, Holder shall apply such
excess against amounts owed by Borrower pursuant to the
Note.
4.
Borrower shall
furnish Holder with a copy of all material entitlements, permits,
and other applications with regard to the Mortgaged Property
promptly upon receipt and shall take such steps as are necessary to
keep all such entitlements, permits, and other applications in
effect.
5.
Borrower shall use
its commercially reasonable efforts to market the Mortgaged
Property and shall retain a broker to assist Borrower with its
efforts. At any time that Holder believes that the
Borrower is not complying with its obligations to market the
Mortgaged Property pursuant to this Section 5 , Holder shall
promptly (and in any event within 10 business days) inform Borrower
of Holder’s concerns regarding the marketing of the Mortgaged
Property. In the event Borrower receives an offer for the sale of
the Mortgaged Property at a price less than sufficient for the
Payment in Full of the Note, such offer shall be
communica
